Category: Real Estate

Condo Association’s Foreclosure On More Than Six Months’ Worth Of Assessments Will Leave Lender’s Lien In Place Under D.C. Amendments

Courts have long interpreted the D.C. Condominium Act as creating a super-priority lien on a condo unit, in favor of the condo association, for the most recent six months’ worth of the unit owner’s unpaid assessments. This lien was held superior to any other lien, and it was bulletproof – its priority remained, for example, even if the association’s foreclosure ads specifically called out superior liens. Those liens were extinguished by a foreclosure on the association’s six-month, super-priority lien.
Amendments to the Act in 2017 gave rise to some uncertainty as to the ongoing application of these principles. The amended Act requires an association to notify the unit owner that an impending foreclosure sale either (a) is limited to the six-month super-priority lien or (b) is for more than that and, therefore, subject to a superior deed of trust. Following the passage of the amendments, questions arose regarding lien priority and regarding the survival of a superior deed of trust in various circumstances.
In Wonder Twins v. 450101 Housing Trust, decided in November 2024, the D.C. Court of Appeals held that the most recent six months of unpaid assessments continue to give rise to a super-priority lien, and that “a condominium association foreclosing on only that six-month portion extinguishes any deed of trust, regardless of the asserted terms of the sale.” The buyer at foreclosure in that scenario takes the property free of the lender’s lien.
The Court also held, though, that when an association forecloses on unpaid assessments dating back more than six months, the association still has payment priority for its six months’ worth of super-priority assessments, but the superior deed of trust is preserved. In this scenario, if the lender is not paid in full out of the foreclosure proceeds, the buyer takes the property subject to the lender’s lien. And, if the lender is paid in full, the association may have recourse to amounts above the lender’s claim, since it foreclosed on both its super-priority and its subordinate liens. 
How a condo association chooses to proceed under these principles will depend on the facts and figures of the particular case. Notice, however, that the association gets paid for its six months’ worth regardless of which option it chooses (unless the price at foreclosure is inadequate to pay even that amount, of course). Note, too, that the price paid at foreclosure is likely to be higher if the association forecloses only on its unpaid assessments for the past six months, i.e., if the lender’s lien is being extinguished by operation of the statute.
Lenders may consider engaging with condo associations proactively upon becoming aware of distress at the property, given the significant differences in interests and outcomes that can result from the association’s procedural choices.

State Agency Rulemaking: Beyond Minimum Compliance

Go-To Guide:

Massachusetts Supreme Judicial Court invalidates agency guidelines for non-compliance with Administrative Procedures Act. 
Strict adherence to state administrative procedures is crucial for enforceable regulations. 
Negotiated rulemaking (“Reg-Neg”) offers potential benefits beyond minimum compliance requirements. 
Agencies should consider balancing speed, compliance, and stakeholder engagement in the regulatory rulemaking process.

On Jan. 8, 2025, in Attorney General v. Town of Milton, SJC-13580, the Massachusetts Supreme Judicial Court (SJC) refused to enforce certain “guidelines” promulgated by the Massachusetts Executive Office of Housing and Livable Communities (HLC), which the MBTA Communities Act explicitly called for. According to the SJC, the guidelines were ineffective because the HLC failed to strictly follow the statutory procedures in the Massachusetts Administrative Procedures Act (MA APA) when adopting the guidelines. As a result, if the HLC wants to enforce the guidelines, they “must be repromulgated in accordance with [the MA APA].”
As the SJC explained, the MA APA establishes minimum standards of fair procedure that agencies must follow when promulgating rules that satisfy the MA APA’s definition of a “regulation” (relying on Carey v. Comm. Of Correction, 479 Mass. 367 (2018)). Although it appears HLC performed several of the activities called for in the MA APA (such as receiving comment), the SJC found that HLC did not strictly comply with all required procedures.
Following the SJC decision, HLC adopted emergency regulations substantially similar to the initial guidelines that will remain in effect for 90 days. HLC has indicated that it intends to adopt permanent regulations following a public comment period before the emergency regulations expire.
The SJC’s decisions in Town of Milton and Carey highlight that the regulatory landscape has become increasingly complex. State agencies face the challenge of creating regulations that balance multiple interests while complying with legal mandates of the MA APA and other statutes and acting with the speed policymakers expect. Although the MA APA’s minimum requirements must be followed, under certain circumstances state agencies may want to consider doing more than the minimum to build public trust and diminish the likelihood of their rulemaking being challenged. This is particularly true in the case of complex, industry-specific regulations where the insights of experts and knowledgeable stakeholders add value to the regulatory rulemaking process.
One effective method to achieve those goals is through “negotiated rulemaking” (known as “Reg-Neg” and outlined in the federal Negotiated Rulemaking Act of 1996, 5 U.S.C. § 561-570a). Through a Reg Neg process, an agency works with an independent “convener” who helps the agency decide whether a negotiated rulemaking process may feasibly result in a consensus agreement on the contemplated regulatory language. To do so, the convener works with the agency first to identify all relevant stakeholders or stakeholder groups that may be affected or have an interest in the regulations. Then, the convener works with the agency and stakeholders to understand joint and competing interests, concerns, and needs underlying the proposed regulations. Also, the convener identifies industry experts needed for the proposed rulemaking negotiation. After the initial investigation and analysis, the convener then prepares a comprehensive convening assessment report, which determines whether achieving consensus through a negotiated rulemaking process is feasible. 
If feasible and if the agency and stakeholders agree to pursue a Reg Neg process, the convener meets with the agency and stakeholders to help the parties select a Reg Neg Committee, which consists of appointed agency personnel and stakeholder representatives. The Reg Neg Committee then retains a facilitator (which often is the convener) to establish and oversee the Reg Neg process. Importantly, the facilitator is independent and focused on making sure the Reg Neg Committee reaches consensus on the proposed regulations within the proper timeframe required by governing law, as well as satisfies all relevant interests. In Massachusetts, like other states, the MA APA permits such a Reg Neg process, so long as it also satisfies the MA APA’s minimum requirements.
If the Reg Neg Committee follows an appropriate Reg Neg process, the hallmark of which is transparency and collaboration, the proposed regulations generally are easier to implement and less likely to be challenged administratively or through litigation (see Administrative Conference of the United States “Negotiated Rulemaking and Other Options for Public Engagement”). That is because, based on the convening assessment, the facilitator is generally better able to prevent impasse and help the parties reach consensus in a collaborate way. Bringing together diverse stakeholders, giving them a seat at the table, and including them in the regulation drafting and approval process helps create ownership among the agency’s constituents and helps build public trust. In essence, stakeholders who help draft regulations may be more likely to accept and follow those regulations, while regulations that stakeholders believe are foisted upon them over their public comments and objections may find new forums to continue those objections. By involving agreed-to industry experts, enacted regulations themselves are generally of greater quality. Finally, doing more than the minimum may result in a more efficient rulemaking process, may reduce costs due to avoiding regulatory starts and stops and may preemptively avoid disputes and unnecessary litigation costs.

Homelessness Crisis Demands Action

We have seen a dramatic increase in housing insecurity among our pro bono clients in recent years. Unfortunately, it’s part of an alarming nationwide trend. According to a recent report issued by the U.S. Department of Housing and Urban Development (HUD), homelessness reached a record high in 2024. Indeed, the report found that the number of people experiencing homelessness in the United States – more than 770,000 – grew by 18% from the previous year, while the number of people in families with children experiencing homelessness increased by 39%. In a post-pandemic economy that is generally considered to be doing well, it seems counterintuitive that we would now be experiencing such growing hardship. The report points to several factors driving these numbers:
Our worsening national affordable housing crisis, rising inflation, stagnating wages among middle- and lower-income households, and the persisting effects of systemic racism have stretched homelessness services systems to their limits. Additional public health crises, natural disasters that displaced people from their homes, rising numbers of people immigrating to the U.S., and the end to homelessness prevention programs put in place during the COVID-19 pandemic, including the end of the expanded child tax credit, have exacerbated this already stressed system.
Economic insecurity makes any legal issue more difficult to handle and, as discussed in a recent post about a client whose child was temporarily removed from her care because she had trouble finding stable housing, it can also be the very cause of a legal issue. HUD’s eye-opening report reinforces the importance of taking on more pro bono matters in housing and family courts. As a profession, lawyers also need to expand the scope of assistance that nonlawyers can provide to unrepresented litigants and prioritize the development of AI and other technology to help bridge the justice gap. A great example of this type of advocacy is Housing Court Answers, a legal services organization in New York City embracing AI to help litigants in housing repair actions. 
Taking a step back, HUD’s report underscores the urgent need to develop affordable housing and provide greater assistance to secure the safety and security of families and children. Not only is this sense of urgency lacking across the country, but the response to homelessness from local authorities is too often punitive in nature. Of note, last summer, the Supreme Court in Grants Pass v. Johnson upheld a local Oregon law prohibiting camping inside parks, sidewalks and other public property. The Court rejected the argument that punishing people for sleeping outside when they have no place to go constituted cruel and unusual punishment under the Eighth Amendment. Regardless of the Eighth Amendment’s reach, however, one thing is clear: relying on criminal law to solve the homelessness problem does not work. As Justice Sotomayor explained in her dissent, “[f]or people with nowhere else to go, fines and jail time do not deter behavior, reduce homelessness, or increase public safety.”

Christina Haack Delists $7M Home after Ongoing Divorce Battle with Josh Hall

Christina Haack Delists $7M Home after Ongoing Divorce Battle with Josh Hall. Christina Haack’s ongoing divorce battle with Josh Hall has taken another unexpected twist, with the TV star once again delisting her $4.5 million (approximately $A6.9 million) farmhouse from the market. This latest development comes just two months after Haack had relisted the property […]

Summary of Tax Proposals in Leaked Document Detailing Policy Proposals

I. Introduction
On January 17, 2025, news sources reported that Republican members of Congress circulated a detailed list of legislative policy options, including tax proposals. This blog post summarizes some of the tax proposals and corresponding revenue estimates mentioned in the list.
II. Individuals
(a) SALT Reform Options
The $10,000 cap on the deductibility of state and local tax (“SALT”) from federal taxable income for most non-corporate taxpayers is set to expire at the end of the year. The list includes several alternative proposals for SALT deductibility going forward.

Repeal SALT Deduction: The SALT deduction would be repealed for individual and business tax filers. This would raise $1 trillion over ten years, as compared to extending the current TCJA deduction cap.
Make $10,000 SALT Cap Permanent but Double for Married Couples: The current TCJA deduction cap for individual and business tax filers would remain, but the cap would be raised for married couples to $20,000 at an estimated cost of $100-200 billion over 10 years, as compared to extending the current TCJA deduction cap.
$15,000/$30,000 SALT Cap: The current SALT deduction cap would be increased to $15,000 for individual taxpayers and $30,000 for married couples, with an estimated cost of $500 billion over 10 years, as compared to extending the current TCJA deduction cap.
Eliminate Income/Sales Tax Deduction Portion of SALT: Only property taxes would be eligible for the SALT deduction, and the deduction would not be capped. This proposal would cost $300 billion over 10 years, as compared to extending the current TCJA deduction cap.
Eliminate Business SALT Deduction: This policy option would eliminate the SALT deduction for business filers only, while maintaining the TCJA deduction cap for individuals. It would raise $310 billion over 10 years.

(b) Repeal or Reduce Mortgage Interest Deduction
The TCJA lowered the amount on which homeowners may deduct home mortgage interest to the first $750,000 ($375,000 if married filing separately) of indebtedness. One proposal would repeal the deduction on primary residences, which would raise $1.0 trillion over 10 years dollars, as compared to extending current TCJA deduction caps.A second proposal would lower the cap on the deduction to the first $500,000 of indebtedness. This proposal would raise $50 billion over 10 years, as compared to extending current TCJA deduction caps. Both savings estimates are Tax Foundation scores.
(c) Repeal Exclusion of Interest on State and Local Bonds
Under current law, interest earned on bonds issued by states and municipalities is excluded from federal taxable income.One proposal would repeal this exclusion, which would raise $250 billion over 10 years. Interest on certain “private activity bonds” is also exempt from federal income tax. A second proposal would repeal the exemption for private activity bonds, Build America bonds, and other non-municipal bonds. It would raise $114 billion over 10 years.
(d) Repeal the Estate Tax
Estates are generally subject to federal tax. The TCJA raised the estate tax exclusion to $13,990,000 in 2025. The list includes a complete repeal of the estate tax. The proposal would cost $370 billion over 10 years.
(e) Exempt Americans Abroad from Income Tax
 The foreign earned income exclusion allows U.S. citizens who are residents of a foreign country or countries for an uninterrupted tax year to exclude up to $130,000 in foreign earnings from U.S. taxable income in 2025. The list suggests the limit could be raised, or that all foreign earned income could be exempted from U.S. tax. The Tax Foundation has estimated that the cost is $100 billion over 10 years, though it is not clear which proposal the estimate is related to. This is a Tax Foundation Score.
III. Businesses
(a) Corporate Income Tax
The current corporate income tax rate is 21%. The list posits reductions in the rate to either 15% (at a cost of $522 billion over 10 years) or 20% (at a cost of $73 billion over 10 years).
(b) Repeal the Corporate Alternative Minimum Tax
The Inflation Reduction Act of 2022 (“IRA”) imposed a 15% corporate alternative minimum tax (“CAMT”) on the adjusted financial statement of certain very large corporations. One proposal would repeal the CAMT, at a cost of $222 billion over 10 years.
(c) Repeal Green Energy Tax Credits 
The IRA enacted various “green” tax credits, including for clean vehicles, clean energy, efficient building and home energy, carbon sequestration, sustainable aviation fuels, environmental justice and biofuel. These tax credits are proposed to be repealed. The repeal would save up to $796 billion over 10 years. 
(d) End Employee Retention Tax Credit
The Employee Retention Tax Credit (“ERTC”) was established under the Coronavirus Aid, Relief, and Economic Security Act in 2020. The ERTC provided “Eligible Employers” with a refundable tax credit for wages paid between March 12, 2020 and January 1, 2021 for keeping employees on payroll despite economic hardship related to COVID-19.The proposal would extend the current moratorium on processing claims for credits, eliminate the credit for claims submitted after January 31, 2024 and impose stricter penalties for fraud related to the credit at an estimated savings of $70-75 billion over 10 years.
IV. Nonprofits
(a) Endowment Tax Expansion for Private Colleges and Universities
The TCJA imposed a 1.4% excise tax on total net investment income of private colleges and universities with endowment assets valued at $500,000 or more per student (other than assets used directly in carrying out the institution’s exempt purpose). One proposal would increase the excise tax to 14%, which would raise $10 billion over 10 years. A related but separate proposal would change the counting mechanism for the per student endowment calculation to include only students who are U.S. citizens, permanent residents or are able to provide evidence of being in the country with the intention of becoming a citizen or permanent resident. This proposal would raise $275 million over 10 years.
(b) Repeal Nonprofit Status for Hospitals
Generally, hospitals are eligible for federal tax-exempt status. The list proposes to eliminate tax-exempt status for hospitals. The Committee for a Responsible Federal Budget has estimated that the proposal would raise $260 billion over 10 years.
V. Enforcement
Repeal IRA’s IRS Enforcement Funding
The IRA resulted in supplemental funding to the IRS, for enforcement purposes. The list states that if this funding is repealed, outlays would be reduced by $20 billion and revenues by $66.6 billion, for a net cost of $46.6 billion over 10 years.
Mary McNicholas and Amanda H. Nussbaum also contributed to this article.

Home Developers Beware: Mass. Appeals Courts Finds Chapter 93A Liability Beyond Contractual Disclosure Requirements

In Tries v. Cricones, home buyers prevailed at trial on their claims against home developers and sellers. Plaintiffs sued because defendants’ failed to disclose that the buyers’ yard was contaminated by Japanese knotweed, large shards of glass, and metal debris. A jury found for the plaintiffs on their private nuisance, breach of the implied covenant of good faith and fair dealing, and Chapter 93A, Section 9 claims. The trial judge denied the defendants’ motion for a directed verdict and awarded the plaintiffs’ their damages, attorneys’ fees, and costs.
On appeal by the defendants, the Appeals Court concluded that the trial judge should have granted the defendants’ motion for a directed verdict on the plaintiffs’ private nuisance and breach of the implied covenant of good faith and fair dealing claims. As to private nuisance, the claim requires a claimant to have an interest in the property and the “invasion” causing the nuisance must “come from beyond, usually from a different parcel.” Accordingly, the plaintiffs did not have a private nuisance claim against the defendants for pre-existing contamination of their own yard. The claim would be more appropriate under an implied warranty of habitability theory.
As to the implied covenant claim, the Appeals Court similarly concluded that defendants were entitled to a directed verdict because the implied covenant cannot be used to create rights and duties not provided in an existing contractual relationship. Here, the parties’ purchase and sale agreement did not expressly require the defendants to disclose soil contaminants, and the existence of the contaminants alone was not sufficient evidence that the defendants had breached their contractual obligations in bad faith. Rather, a purchaser’s protection against latent defects in a home purchased from a builder lies in any warranty and disclosure requirements in the sale contract, and, again, the implied warranty of habitability, and Chapter 93A.
As to Chapter 93A, the Appeals Court rejected the defendants’ argument that their liability under Chapter 93A was limited to the “terms and obligations”of the parties’ contract. That is because Chapter 93A is “not dependent on traditional tort or contract law concepts for its definition” of unfair or deceptive acts or practices. In that regard, a property seller can violate Chapter 93A by not disclosing a material fact even in the absence of a contractual duty to disclose, especially when disclosure of the fact may have influenced a buyer not to enter into the transaction. 
To recover under that theory, the plaintiffs had to show that (1) the defendants knew that the property was contaminated with hazardous material; (2) the contamination was a material circumstance which would have led the plaintiffs not to purchase the property; and (3) the defendants failed to disclose the problem. Here, the evidenced adduced at trial support those findings. Also, while a defendant may avoid liability under Chapter 93A for a nondisclosure “if it is shown that the plaintiff knew about the contamination,” the evidence did not demonstrate such knowledge by the plaintiffs. Therefore, despite not having any disclosure requirements in the purchase and sale agreement, the Appeals Court affirmed the trial court’s Chapter 93A judgment against the defendants.
This decision demonstrates the importance of developer-sellers of residential homes looking beyond common law and contractual disclosure requirements and assessing whether they need to disclose any known latent defects in the property before consummating the sale. Otherwise, once discovered, latent defects may expose a developer-seller to Chapter 93A liability.

Bankruptcy Dollar Amounts Set to Rise Significantly on April 1, 2025

Every three years on April 1, the dollar amounts in the Bankruptcy Code are adjusted to account for inflation. The April 1, 2025, increase will be approximately 13.2%, even larger than the nearly 11% increase three years ago.
Bankruptcy Code section 104 requires the Judicial Conference of the United States to publish the changes at least a month before they take effect. On February 4, 2025, the Judicial Conference published this year’s increase in the Federal Register.[1] The planned 13.2% increase in statutory dollar limits will affect nearly everything in bankruptcy that has a dollar limit, including

the amount of property that a debtor may exempt from the estate,
the maximum amount of certain “priority” claims, such as for employee wages and for deposits for certain undelivered products and services,
the minimum aggregate claims needed to file an involuntary bankruptcy petition, and
the aggregate debt limits used to determine which debtors qualify to file cases under chapter 13 or subchapter V of chapter 11.

Anyone who relies on specific dollar limits in the Bankruptcy Code should note these changes.
Note, subchapter V of chapter 11 previously had a debt limit of $7,500,000, but as we reported earlier, this debt limit reverted on Friday, June 21, 2024, to $3,024,725. The subchapter V debt limit will rise to $3,424,000 on April 1, 2025, as part of this triennial adjustment.
Michigan has dollar limits for its own set of state-specific bankruptcy exemptions, and its dollar limits increase every three years as well. They increase on a different three-year cycle, though. They were last increased March 1, 2023, and are not set to increase again until 2026.
[1] Adjustment of Certain Dollar Amounts Applicable to Bankruptcy Cases, 90 FR 8941-01.

Massive Compensation for Home Sellers Due to Inflated Broker Fees

Massive Compensation for Home Sellers Due to Inflated Broker Fees. Homeowners who sold their properties through a multiple listing service (MLS) between October 31, 2017, and July 23, 2024, and paid a real estate broker commission, may be entitled to compensation from a series of class action settlements totaling over $730 million. The settlement stems […]

California AB 3108 Creates Potential Mortgage Fraud Issue for Lenders on Owner-Occupied Mortgage Loans Made for a Business Purpose

California Assembly Bill 3108 became effective on January 1, 2025 and could conceivably make certain business purpose loans secured by owner-occupied property subject to mortgage fraud claims by the borrowers. The primary goal of the new law—passed unanimously by the State Assembly and nearly unanimously by the State Senate (with one apparent absentee)—is to protect borrowers from certain predatory practices by mortgage lenders and brokers. However, unintended consequences may arise.
Assembly Bill 3108 makes it felony mortgage fraud for a “mortgage broker or person who originates a loan” to intentionally:

Instruct or otherwise deliberately cause a borrower to sign documents reflecting the terms of a business, commercial, or agricultural loan, with knowledge that the borrower intends to use the loan proceeds primarily for personal, family, or household use.
Instruct or otherwise deliberately causes a borrower to sign documents reflecting the terms of a bridge loan, with knowledge that the loan proceeds will be not used to acquire or construct a new dwelling. For purposes of this subdivision, a bridge loan is any temporary loan, having a maturity of one year or less, for the purpose of acquisition or construction of a dwelling intended to become the consumer’s principal dwelling.

This law is clearly intended to go after bad actors with respect to both mortgage loans and bridge loans. However, it also opens up the possibility that a delinquent or defaulting borrower with a business purpose loan could claim that the mortgage lender or broker committed a felony by persuading the borrower to claim that the loan was made for business purposes when the lender knew that the loan was actually for personal purposes.
Putting It Into Practice: All mortgage lenders and mortgage brokers should have policies in place for determining and documenting when loans are made for business purposes. This is the time to review those policies and make sure they are as protective as possible. At a minimum, those policies should include the following:

Obtain a handwritten letter signed in the lender’s presence by the borrower detailing the business purpose of the loan.
Gather corroborating evidence of the business purpose, such as financial statements and invoices.
Have the applicant sign a business purpose certificate.
If possible, fund the loan proceeds to a business bank account.
Consider recording a telephone conversation with the applicant discussing the business purpose, but be sure to inform the applicant that the call is being recorded, as required by California law.
Consider obtaining a legal opinion from the borrower’s counsel.

Having these policies in place could significantly reduce the risk that a borrower will later claim that the mortgage lender or broker has committed felony mortgage fraud in violation of AB 3108.
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Mass. Appeals Court Clarifies Chapter 93A Violations in Landlord-Tenant Dispute

The Appeals Court of Massachusetts recently took up another summary process action concerning landlord-tenant rights and Chapter 93A violations in Hayastan Indus., Inc. v. Guz. In a summary decision[1], the court affirmed a liability finding against a landlord for Chapter 93A violations under several distinct theories. 
Plaintiff, a corporate entity, purchased a manufactured home and the lot it resided on from the bank after defendants defaulted on their loan. Plaintiff then brought a summary process action in the Housing Court to take possession of the manufactured home, and the tenants counter-claimed for Chapter 93A violations. The Housing Court entered judgment dismissing plaintiff’s claim for possession of the manufactured home and found plaintiff violated Chapter 93A. 
 The Appeals Court agreed that the Housing Court erred in concluding that the 30-day notice to quit delivered to the tenants without cause violated the M.G.L. c. 140, § 32J requirement, which is designed to protect owners of manufactured homes. At the time of the notice to quit, the tenants no longer owned the manufactured home and were no longer entitled to the statute’s protections. Thus, the Housing Court erred in dismissing the possession claim based on a M.G.L. c. 140, § 32J violation and in finding a Chapter 93A violation based on this statutory violation. 
The Appeals Court further determined, however, that the Housing Court did not err when it concluded that an April 27, 2020, letter plaintiff sent to the tenants violated the Massachusetts eviction moratorium during the COVID-19 pandemic. While the letter did violate the eviction moratorium, the Appeals Court disagreed with the Housing Court that this technical violation was a “serious interference” with a tenancy such that it violated Massachusetts’ quiet enjoyment statute. The Housing Court therefore vacated that ruling and the damages awarded on this claim. This issue was remanded to the Housing Court for the limited purpose of determining whether the technical violation of the eviction moratorium caused the tenants a loss as required to recover under G.L. c. 93A. 
Finally, the Appeals Court did not believe the judge erred in finding a violation of Chapter 93A due to plaintiff’s inclusion of lot fees in the summary process complaint, when such fees had previously been adjudicated by the Housing Court not to be owed by the tenants. The Housing Court found that plaintiff “commenced eviction proceedings approximately nine days after purchasing the home because it intended to make repairs and put it on the market for sale,” which supported the conclusion that the notice to quit was motivated by business reasons. These “business reasons” amounted to conduct in trade or commerce for the purposes of Chapter 93A. The Housing Court found, and the Appeals Court agreed, that even though the summary process complaint was amended to remove the demand for lot fees, the elements of c. 93A were still met at the time the summary process complaint was served. Thus, the demand for invalidated lot fees amounted to an unfair or deceptive business practice, which caused defendant to suffer an emotional injury in the form of lost sleep and anxiety. The Appeals Court noted that the failure of the company to apprise itself of the legal effect of the pending appeal did not amount to the sort of negligence that precludes liability under G.L. c. 93A.
The Appeals Court decision on the final issue seems to run contrary to established law that petitioning activity is typically immune from Chapter 93A liability.[2] It does not appear that plaintiff’s petitioning activity was frivolous or designed to frustrate competition.[3] Rather, plaintiff sought to take possession of a property it recently purchased through a summary process complaint and amended the complaint to remove the demand for lot fees it was not owed prior to actual litigation on the issue. This case highlights what appears to be a trend at the trial court level to expand the scope of Chapter 93A liability.

[1] A summary decision is a decision primarily directed to the parties and represent only the views of the panel that decide the case. It may be cited for its persuasive value but is not binding precedent. 
[2] See Morrison v. Toys “R” Us, Inc., 441 Mass. 451, 457 (2004) (Chapter 93A “has never been read so broadly as to establish an independent remedy for unfair or deceptive dealings in the context of litigation, with the statutory exception as to those ‘engaged in the business of insurance’”).
[3] See Bristol Asphalt Co., Inc. v. Rochester Bituminous Products, Inc., 493 Mass. 539 (2024).

Boston Accelerates Net Zero Carbon

Last week, the Boston Zoning Commission adopted Net Zero Carbon (NZC) zoning. As addressed in our 2021 and 2023 advisories, this completes a three-part decarbonization strategy, along with the Specialized Energy Code and the Boston Emissions Reduction and Disclosure Ordinance (BERDO 2.0).
NZC requires carbon neutrality for new buildings of at least 20,000 square feet or 15 dwelling units, or additions of at least 50,000 square feet, that file for Large Project Review or Small Project Review on or after July 1, 2025. It will not apply to renovations or changes of use. It requires carbon neutrality once new buildings become operational, with exceptions for lab use (until 2035), and hospital and general manufacturing uses (until 2045).
Here is how NZC interrelates to the other prongs:

The Specialized Energy Code, adopted by Boston in 2023, provides stricter energy efficiency requirements than the frequently iterated Stretch Energy Code, which in turn exceeds the Massachusetts Base Energy Code. The Boston Planning Department estimates that the 2023 Specialized Code may have halved greenhouse gas emissions from new buildings compared to the version of the Stretch Code in effect when Boston’s 2019 Climate Action Plan was adopted. NZC is intended to address the remaining half for new construction.  
BERDO 2.0 also targets carbon neutrality, but for covered buildings that already exist (i.e., containing at least 20,000 square feet or 15 dwelling units), phased in to 2050. Emissions levels must decrease every 5 years following a prescribed schedule unless the Emissions Review Board approves an alternative compliance pathway. The Planning Department estimates that 70% of covered existing buildings will have to take steps to comply with emissions reduction requirements by the first milestone in 2030. 

NZC compliance will be assessed through Article 80B Large Project Review or Article 80E Small Project Review based on Planning Department review of a project’s already required Leadership in Energy and Environmental Design (LEED) scorecard, together with a new Greenhouse Gas Emissions checklist. Projects with at least 50,000 square feet will also submit a new structural life cycle analysis addressing embodied carbon emissions from fabrication, transportation, demolition disposal, construction materials, and the like. After becoming operational, the new building becomes an existing building subject to, but presumably already compliant with, BERDO 2.0.